My Reaction to Comments on the Rangers/Title Stripping Prediction

I am very grateful to all of my readers and to my commenters for the debate on my last post. It is good to see everyone engaging in the civilised debate which had been one of the best features of this little nook of the Internet.

So I thought that it might be useful to comment, in my turn, on some of the observations posted to the piece.

What I should say is that the predictions I have made, (or indeed guesses!), are of what I think will happen, rather than what I think should happen. That is a discussion for another time, and probably once the matter is over and the detailed evidence is produced publicly.

To recap, I think the following:-

• Lord Nimmo Smith’s Independent SPL Commission will find Rangers (the club) guilty of breaking the rules regarding registrations and payments;
• RIFC PLC will challenge this in the courts, but fail;
• Lord Nimmo Smith’s Commission will not “strip titles” from Rangers.
• The Commission will impose a financial penalty upon “the club”.
• RIFC PLC will refuse to pay.
• A legal impasse will arise and the footballing authorities will find it very hard to decide how to proceed.

Some of the comments below were answered better than I will be able to do by others in the threads, but I have out them here to collate the relevant points.

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Cam said – i think that once LNS has checked over the audited accounts of RFC and noted that all EBT’s were declared to the SPL/SFA, then in conjunction with Darrell Kings marvellous legal summary that a private loan between two parties is hee haw to do with LNS or anyone else then apologies and damages payable to Chico should follow suit.

Sorry Cam. The “EBTs were declared in the accounts” argument is a red herring. Whilst the accounts of Rangers FC PLC stated a global figure paid out by the company under the EBT scheme, this was not divided down into individual payments, nor indeed was the split between players and non-players detailed. One might as well say that, as the annual accounts include a figure for wages, this would be full disclosure of the sums paid to each INDIVIDUAL player.

The defence of “it was in the accounts” will not work, although it has been advanced almost as a matter of dogma by some of the Rangers fanbase.

And as for Darrell King’s point (who is Darrell King, by the way) that private loans are nothing to do with anyone – well these were not private loans in the way normal folk would describe them. At the FTT there was no attempt by Rangers/MIH to say that the EBT payments were anything other than a device to save tax. The case hinged on the judges’ decisions about whether that had been done in the rules or outside them.

Finally, and I am sure this is Cam donning his jester’s hat to provoke reaction in other readers, but Mr Green getting damages should the Commission clear Rangers! Brilliant Cam – one of your best yet!

Maggie said – While hoping that Paul’s scenario does not come to pass, I wonder how the HMRC appeal (if granted ) would affect the findings of LNS ?

This is an interesting one. Whilst the issues for the SPL Commission are not the same as those for the FTT, there is clearly a substantial overlap in terms of evidence. Therefore one might think that a delay in the Commission until the tax appeal is finally complete would be prudent. However that will not happen.

The main reason for this is a practical one.

The appeal to the Upper Tribunal could itself be appealed to the Inner House of the Court of Session, and from there to the UK Supreme Court. If all those steps are followed, it could be 2017 before the case concludes! I suspect that delaying the Commission till then would not be in the interests of justice nor of a “prompt” resolution.

This of course means that, should the Upper Tribunal decide that the EBT scheme was unlawful as applied by Rangers, they might already have benefited by having the case determined before such a verdict is handed down.

I do not foresee the SPL/SFA leaving the matter in abeyance for the years needed.

If the allegations against the former Rangers administration were criminal in nature, then, and only then, it would be appropriate to delay the disciplinary processes, for fear of prejudicing a prosecution. That is not the case here. Therefore I see no likelihood of delay.

Equally, even if, in 2014 or 2016 or whenever, the tax decision goes against Rangers/MIH, I do not see the football authorities looking to re-open the case.

The justification for this is simply that the questions the tax case raises are distinct from those raised by the Commission.

Equally, once this is concluded, I suspect that the football authorities have not the slightest wish to re-visit this saga once the matter concludes. Therefore, even if it was felt that a revised decision on the tax case brought something new to the SFA/SPL case, there is no way in which the case would be re-opened.

Duplesis said – This Commission is an SPL one conducted under the SPL rules though, so unless the SFA delegated powers to the SPL in connection with this matter (and I haven’t heard it reported that they did), then it would only be penalties within the competence of the SPL which could be imposed.

SPL Rule G6.1.18 states that, as one of the possible penalties that an SPL Commission can impose for rule breaches, the Commission may:-

make such other direction, sanction or disposal, not expressly provided for in these Rules, as it shall think appropriate;

As the case relates to breach of SPL and SFA Rules, then it is my understanding that the Commission could choose to impose any “direction, sanction or disposal … it shall think appropriate”.

The SFA Judicial Panel erred, in the view of the Court of Session, in opposing a penalty which was ultra vires. This was because the Code dealing with the offence of Rangers specified a range of specific penalties. This therefore meant that the Panel could not use the powers to impose “additional” or “alternative” penalties.

Here it is entirely different. There is a range of 19 “sanctions” one of which is as quoted above.

The case was to be dealt with by the SFA until it was determined that if dealt with by the SPL, then the SFA could preside in an appellate role.

So it is my view that the Commission could expel Rangers from football, although I am certain that they will not do so.

Michaelk1888 – There are murmurings currently that the RFF are likely to challenge legally any imposed penalties through the courts in the stead of the club and this is actually a good take as it pushes the “fans” together and back into the spotlight, which is never going to be far away this year.

Michael is spot on. Fresh from the website of the Rangers Fans Fighting Fund on 17^th January 2012 comes the news that:-

RANGERS Fans Fighting Fund announce tonight that they will be underwriting costs incurred in the battle to protect the club’s 54 titles. The Fund are fully committed to defending Rangers’ history, which includes all honors.

Rangers fans have already paid in more than half a million pounds to the Fund and after tonight’s meeting a spokesman said:

‘It is absolutely crucial that Rangers’ titles remain untouched. But because there has been a long-running campaign in the media and within certain other clubs to punish Rangers we must do everything within our power to protect the club’s proud history. Every fair-minded person knows where these titles belong and we will not sit back and allow anyone to have them removed.’

This is an interesting one. We know that RIFC PLC has no intention of appearing at what Mr Green has stated is a “kangaroo court”. Rangers FC PLC (in liquidation) is not appearing at the hearing either.

Rangers Football Club has no legal personality – it cannot appear in court nor can it enter into a contract for its legal representation.

Is the position of the RFFF that it will pay RIFC PLC’s lawyers, to save Mr Green’s company from having to spend money on it?

Is it the position of the RFFF that it is going to fund lawyers of its own to represent the club? What standing does the RFFF have to do so? If a legally qualified Rangers fan turns up at the site of the hearing, would he or she be allowed to appear and represent Rangers, the club, as a fan? By the same analysis, if the fans get together to fund lawyers, what standing do they have?

Hopefully the fans’ organisations including the RFFF can agree who should represent the club! After all, if the RST, the RFFF, the Union Bears, the Vanguard Bears, the FF Brigade, and the Charles Green Loyal do not agree, what happens if they all send along lawyers to represent “the club”?

Remember the Life of Brian? “People’s Front of Judaea!” “F#@& Off!” “Judaean People’s Front!” “Splitters” etc

John C – Now from what I think I’ve understood from this saga, is that Scotland does not have a rule to protect footballing debt as a priority creditor, so why would they want to claim the continuity when HMRC are still looking for the club to pay outstanding Tax bills ?

They are saying the tax bills died with the old club but the footballing debt did not ? Can’t see HMRC accepting that, can you ? Or are we just meant to forget relevant details ?

HMRC is not looking for RIFC PLC or newco (the former Sevco Scotland Ltd) to pay oldco’s taxes. I am sure that they would accept any payment that newco wanted to make for oldco’s tax debt, but that is not going to happen.

The footballing debt passed to newco as this was made a condition of SFA membership. The SFA rules, permitting it to specify conditions for membership, would have allowed the football authorities to make payment of oldco’s tax liabilities a condition of membership for newco. However that would be seen, one assumes, as a circumvention of the rules of insolvency. Football was looking after its own.

Newco simply bought oldco’s assets. Therefore the tax debt did not pass over.

The issue of the tax liabilities is irrelevant to questions of “history”.

Abrahamtoast – While I am usually onside with Paul’s posts, and bow to his greater knowledge of the law, I do think this article is flawed in two distinct ways.

1) I think there are far too many assumptions here for the final outcome to be reasonably argued. While Paul may be well-versed in the law, he is not so well-versed in the workings of the football authorities. These authorities are not so consistent and predictable that such a detailed forecast could be confidently argued.

2) Add to this the fact that the FTT(T) may well be going to appeal, and the whole process may be delayed by some considerable time (which, quite frankly, would suit most parties). Depending on the final verdict and the finer details after any appeal, the scenario may well be entirely different.

To me the article is an exercise in kite-flying. It might be something people currently want to read about, but at the moment there really isn’t much to say, so what was the point?

Of course this was kite-flying!

As I said, having made a brief prediction at New Year, and having had a few folk politely ask why I reached those conclusions, I thought I would provide a more detailed analysis. As I said, it is what I think will happen, rather than what should happen.

Quite correctly Abraham points out that it is speculation. Without being in the hearing room it is not possible to give a fully informed opinion, but I think that, having read the FTT judgement and the flood of information regarding the tax affairs of Rangers, I can offer a reasoned opinion (even if it turns out to be wrong!)

I imagine myself delivering the opinion standing on the edge of the pitch, wrapped up in my sheepskin coat, giving my prediction to David Coleman or Frank Bough sitting in the studio, whilst I freeze in the snow at the Outside Broadcast. Today’s prediction becomes, at some point, figurative chip wrappings.

Alistair McLeod – For me, this summarises, yet again, that the treatment of Rangers has been (and will be) based on who they are, and the clout they have in Scotland, as opposed to what they have done.

I think Alistair is right on the money here. Much as, in theory, one would hope that ultimately the football authorities would be blind as to the accused, and treat Rangers in the same way as, say, Spartans would be treated, reality is different.

Maybe that is not right … but that is what is going to happen.

There is little doubt that the football authorities would love the Rangers issues to go away. The SFA/SPL find themselves as the thinly spread filling in the sandwich formed on one side by Rangers, and its fans and on the other by those who are looking for the rules to be applied, with neither fear nor favour.

Ironically the time since the proposed restructuring has seen various commenters who support Rangers looking at previous instances of reconstruction, and demanding fairness for their team, and to be treated as other teams who won their division before restructuring were. The effect of this would allow Rangers to jump from the fourth tier to the second tier.

Such a demand for equal treatment however does not recognise the equivalent penalties for fielding ineligible players.

Despite the perception that playing an ineligible player automatically means that the offending team “loses” the match 3-0, that is not in the rules applicable to the SPL.

It is the responsibility of the Club to ensure that all its players are registered properly. Failure to do so is a breach of the Rules. The penalty for breach of the rules is one of the 19 separate items listed in SPL Rule G6.1.

One of the 19 penalties/sanctions is as follows:-

“the Commission may award an Official Match (with such deemed score as it thinks appropriate) to a Club”.

Note. It is only one of the possible sanctions, and even then the Rule does not specify the score to be awarded. Maybe elsewhere there are competitions where the rules specify that the outcome is a 3-0 win for the innocent team. The SPL Rules do not say this.

Alexander – Come on Paul, now give us a lengthy article on why they SHOULD be Punished Severely, or have you been warned again?

No Alexander. No “warnings”.

I simply think that this is how the case will be decided, for better or worth.

Posted by Paul McConville